The Eleventh Circuit today denied the petition for rehearing and rehearing en banc filed by the appellants in the Clarke summons enforcement case. The petition did not focus on the broader legal issue that we have previously addressed here concerning the standards for allowing an evidentiary hearing on the basis of allegations of improper motive in issuing a summons. Instead, the petition asked the court of appeals to reconsider whether the trial court erred in refusing to allow the appellants to make new submissions in the wake of the Supreme Court’s remand of the case.

The appellants now have 90 days (until September 20) to file a petition for certiorari asking the Court to consider the case for a second time.

The Eleventh Circuit this morning affirmed the district court’s decision in Clarke that had enforced a group of IRS summonses. The court’s legal analysis provides a glimmer of hope for taxpayers who desire to contest future summonses on grounds of bad faith, but there are daunting factual challenges to being able to actually make use of that legal analysis.

As evidenced by our prior reports, this case has a long history that now encompasses a Supreme Court opinion and three decisions by the Eleventh Circuit. To recap, the summoned parties sought an evidentiary hearing at which they could examine the IRS agent who issued the summonses to explore whether the summonses were issued in bad faith. The Eleventh Circuit had originally ordered such a hearing, but the Supreme Court reversed on the ground that the Eleventh Circuit’s standard was too lenient in requiring a hearing on the basis of a “bare allegation” of improper motive. Instead, the Supreme Court held that the correct standard requires the taxpayer to “point to specific facts or circumstances plausibly raising an inference of bad faith.”

On remand from the Supreme Court, the district court accepted all of the government’s arguments. It declined to allow the taxpayers to introduce additional evidence to make their case. And it dismissed all of their bad faith allegations as “improper as a matter of law.” The court of appeals took issue with that statement and explained that two of the taxpayers’ allegations were legally sound, but held that the “facts and circumstances” to which the summoned parties pointed were not sufficient to raise a plausible inference of bad faith in this case.

First, the court of appeals emphasized that “issuing a summons only to retaliate against a taxpayer would be improper as a matter of law.” The court found, however, that the taxpayers had not established a plausible basis for a retaliation accusation simply by pointing out that the IRS did not seek to enforce the summonses until six months after they were issued and the matter was already in the Tax Court. The taxpayer argued that this timeline showed that the investigating agents did not need the information sought in the summonses and therefore must have issued them for a retaliatory motive. The court of appeals responded that this argument “requires substantial conjecture that is both implausible and unsupported by the record.”

Second, the court of appeals stated that issuing a summons as a way of circumventing Tax Court discovery limitations would be an improper purpose. As we noted in our report on the oral argument in the Supreme Court, the taxpayers had arguably made a reasonable case that the IRS’s decision to enforce the summonses was motivated by a desire to obtain evidence that could help with the Tax Court proceedings; six months passed before the IRS sought to enforce the summonses and lead counsel in the Tax Court proceeding—not the examining agent—conducted the examination of an individual who chose to comply with the summons issued to her.

The strength of this argument, however, turned on being able to examine the IRS’s decision to enforce, rather than its decision to issue, the summonses because the summonses were issued well before there was any Tax Court proceeding. The Supreme Court had left that question unanswered, but the Eleventh Circuit determined to adhere to its “well-established” precedent “that the validity of a summons is tested at the date of issuance.” Given that proposition, along with the rule that commencing Tax Court proceedings does not extinguish the IRS’s summons power, the court of appeals acknowledged that it would be difficult for a taxpayer to make out a claim of bad faith based on circumvention of Tax Court limitations on discovery. The court of appeals stated that “the circumstances under which a taxpayer could successfully allege improper circumvention of tax discovery are exceptionally narrow” and described such claims are “rarely tenable.” In this case, the court explained that it was “of no consequence” that the summoned information could assist the IRS in its Tax Court litigation; because the summonses were issued pursuant to a valid investigation and before the Tax Court proceedings commenced, the summoned parties were obligated to provide the information. That obligation did not evaporate just because an FPAA was issued or a Tax Court petition was filed. Indeed, the court of appeals noted its agreement with the government’s argument that “it is the domain of the tax court to control discovery in the pending tax litigation.”

In sum, the Eleventh Circuit’s decision gives some theoretical grounds for taxpayers to get the opportunity to examine IRS agents at an evidentiary hearing, but as a practical matter, the decision is unlikely to lead to many such examinations. The long saga of the Clarke case has apparently ended with a result that the government will likely find satisfactory.

P.S. We hope that our readers enjoy the new, updated look of the blog, which coincides with Miller & Chevalier’s move to new office space.

We have previously reported on the Tax Court’s important decision in Altera, which has significant implications both for IRS regulation of cost-sharing agreements under the transfer pricing rules and, more broadly, for how the Administrative Procedure Act might operate as a constraint on rulemaking by the Treasury Department in the tax area. Although there were some tactical considerations that could have made the government hesitant to seek appellate review from its defeat in Altera (seehere), the government has now filed a notice of appeal to the Ninth Circuit.

The court of appeals will issue a briefing schedule in due course, and we will keep you posted on the progress of the appeal.

The summoned parties have filed their reply brief in the Clarke case. The brief focuses more on the particular facts of the case and less on legal principles of broad applicability. In particular, the brief criticizes the district court’s decision not to allow introduction of new evidence on remand, arguing that the court made that determination at the initial post-remand status conference, which was earlier than the summoned parties should have been expected to make an offer of proof.test

The district court has ordered enforcement of the IRS’s summonses in its high-profile audit of Microsoft. As we have previously discussed, Microsoft’s objections to the summonses centered on the IRS’s novel decision to bring in an outside law firm (Quinn Emanuel) as a consultant to whom certain tasks would be delegated. The objections also touched on the issue being litigated in the Clarke case concerning the appropriateness of enforcing a summons that is arguably designed to assist the IRS in Tax Court litigation. (See prior posts on Clarkehere.) The district court’s decision in Microsoft turns on its analysis of the factual record and does not break any new legal ground.

With respect to the law firm’s involvement, the essence of the court’s holding was its conclusion that nothing in Code section 7602 prohibits the degree of involvement by an outside contractor that had been shown by the evidence. (Microsoft had argued that, by its terms, section 7602 authorizes only the Secretary of the Treasury (or his specified delegates within Treasury) to “take testimony” or otherwise exercise the summons power.) The court did not affirmatively endorse the IRS’s involvement of the law firm. To the contrary, the court remarked that it was “troubled by Quinn Emanuel’s level of involvement in this audit. The idea that the IRS can ‘farm out’ legal assistance to a private law firm is by no means established by prior practice, and this case may lead to further scrutiny by Congress.” But the court held that it would take further action by Congress to prohibit such involvement; current law does not impose any bar. Because it found no statutory problem, the court saw no need to consider Microsoft’s arguments challenging the validity of the recent temporary regulation that explicitly addresses the IRS’s use of outside contractors.

In reaching its conclusion, the court pressed counsel for Microsoft to specify where the law draws the line between permissible and impermissible involvement of an outside contractor, and the court ultimately found Microsoft’s answers unpersuasive. As summarized by the court, Microsoft admitted at the hearing that the contractor “is permitted under law to examine Microsoft’s books and records, formulate questions to ask witnesses under oath, attend those interviews, and even ask questions via a notepad so long as it is the IRS lawyer who speaks the words.” In the court’s view, nothing in Code section 7602 “prevents the IRS from taking this a step further and having the contractor ask a question while an IRS lawyer continues to run the interview.” The court’s statements imply that it could well be prohibited for an outside contractor to “run the interview” and certainly for it to control the audit. But the court found that the record in this case provided “no factual basis” for Microsoft’s assertion that Quinn Emanuel would be “conducting the audit.” (This finding is hardly surprising given that the only witness at the evidentiary hearing was an IRS official.) Rather, the court concluded, the evidence indicated that Quinn Emanuel “will be gathering limited information for the IRS under the direct supervision of the IRS.”

Distinct from the issues directly raised by Quinn Emanuel’s involvement, Microsoft argued that the summons was issued for the illegitimate purpose of preparing for Tax Court litigation, not for conducting an audit. As we have discussed elsewhere, the legal issue raised by efforts to enforce a summons to aid in Tax Court litigation is more squarely presented in the Clarke case currently pending in the Eleventh Circuit on remand from the Supreme Court. Here, the district court found that there was no factual predicate for Microsoft’s argument, noting that “the record does not contain any direct evidence that these summonses were issued to circumvent the discovery procedures of tax court.” The court pointed to the testimony at the evidentiary hearing, where the IRS witness stated that the investigation was still in the audit phase and the summonses were issued to help the IRS “get to the right number.” Microsoft’s counter to this testimony was to ask the court to draw an inference from the involvement of Quinn Emanuel—namely, that a firm known for trial litigation likely was providing advice on trial preparation and the subsequently issued summonses therefore were an aspect of that trial preparation. The court characterized this evidence as “entirely speculative” and concluded that “Microsoft has entirely failed to meet its burden of proof necessary to prevent the enforcement of these summonses.”

The district court’s decision appears to end this aspect of the Microsoft litigation, as Microsoft is likely to comply with the summons enforcement order rather than seek to have it stayed so that it could appeal. The action on the question of the IRS’s ability to use the summons power to aid in Tax Court litigation now shifts to the Eleventh Circuit, where briefing is nearly complete in the Clarke case and the court has indicated that oral argument will likely be scheduled for the last week of February 2016.

After obtaining a one-month extension, the government has now filed its response brief in the Eleventh Circuit in the Clarke summons enforcement case. See our prior reports here. The brief raises three points in response to the appellants’ argument that the IRS had an improper purpose in seeking to enforce the summonses after Tax Court litigation had begun.

First, the government argues that the appellants are essentially arguing for a blanket rule that a summons cannot be enforced once litigation has commenced in the Tax Court. Such a restriction is not found in the statute, and accordingly the government argues that the appellants’ position violates the Supreme Court’s instruction that “restrictions upon the IRS summons power should be avoided absent unambiguous directions from Congress.” Tiffany Fine Arts v. Commissioner, 469 U.S. 310, 318 (1985). Second, the government argues that, in any event, the appellants are misguided in arguing that the enforcement decision was an improper evasion of the Tax Court’s discovery rules. The government contends that Ash v. Commissioner, 96 T.C. 459, 472 (1991), establishes to the contrary that “the Tax Court has categorically ruled that summonses issued prior to the commencement of litigation . . . do not threaten the integrity of its discovery rules.” The government adds that, if summons enforcement is judged to be an evasion of the Tax Court’s discovery rules, the proper remedy would be for the Tax Court itself to issue a protective order limiting the use of evidence obtained through the summons, not for the district court to quash the summons. Third, the government argues that, as a matter of law, the enforceability of a summons must be judged as of the time it is issued. If the summons was issued for a valid investigative purpose, that is enough, and it is irrelevant what the motivation may have been for deciding to bring an enforcement action months later.

With respect to the appellants’ objection to the district court’s failure to allow introduction of new evidence on remand, the government argues that the appellants did not make an offer of proof and hence they failed to preserve their objection. In any event, the government continues, the court acted well within its discretion in declining to delay the enforcement action further when there was no apparent need for further evidentiary proceedings.

The government has filed its opening brief in the Eleventh Circuit in the Clarke case. The case is now back in that court for the second time after a remand from the Supreme Court that did not persuade the district court to retreat from its prior denial of an evidentiary hearing. See our previous report here.

On the merits, the appellants’ primary argument is that they are entitled to a hearing to explore their allegation that the government is misusing the summons enforcement process to obtain discovery for pending Tax Court proceedings. To that end, the appellants ask the court not to restrict its consideration of the validity of the summons to the situation existing on the date it was issued, but instead to look at the later decision to enforce the summons – well after the statute of limitations had expired. Secondarily, the appellants argue that the district court erred in refusing to allow them to make supplemental submissions in the wake of the Supreme Court’s remand, which arguably changed the legal standard to be applied to appellants’ contentions.

The government’s response brief is due in late September.

In the Microsoft case, the district court held an evidentiary hearing on August 25 and has ordered the parties to submit supplemental briefs on September 2.

While the Eleventh Circuit begins the process of reconsidering the Clarke summons enforcement case following the Supreme Court’s remand (see our prior reports here), a federal district court is poised to address similar issues much sooner in a case that has garnered extensive publicity. (Incidentally, briefing is now underway in Clarke, with the respondents’ opening brief on appeal due on August 14.).

As most readers probably know, the government is engaged in a major transfer pricing audit of Microsoft in connection with its cost-sharing arrangements with affiliates in Puerto Rico and Asia. The IRS has hired the law firm of Quinn Emanuel as a consultant to assist in the audit, including participating in interviews. That unusual course of action by the IRS has attracted much attention, including from the Senate Finance Committee, which sent a letter to the IRS demanding an explanation and requesting that the IRS halt the use of such private contractors “for both the examination of records and the taking of sworn testimony.”

Microsoft has vigorously challenged the legality of the IRS’s engagement of Quinn Emanuel. The IRS contends that its action is authorized by a temporary regulation promulgated without notice-and-comment on June 9, 2014, which provides that third-party contractors “may receive books, papers, records, or other data summoned by the IRS and take testimony of a person who the IRS has summoned.” 26 C.F.R. § 301.7602-IT(b)(3). The IRS contends that Quinn Emanuel did not commence work under the contract until approximately a month after the regulation was issued, although technically it was retained earlier.

Microsoft has pursued its challenge on multiple fronts. It submitted several FOIA requests to the IRS, and its FOIA requests for documents relating to promulgation of the temporary regulation and its contacts with the private law firms are the subject of pending lawsuits in federal district court in Seattle (Western District of Washington). (An earlier FOIA suit was dismissed after the IRS capitulated and turned over its contract with Quinn Emanuel.) The immediate action, however, lies in a summons enforcement suit pending before the same judge as the FOIA cases (Judge Ricardo Martinez).

After issuing more than 200 IDRs, the IRS issued several designated summonses seeking additional information. Microsoft forced the IRS to go to court to seek enforcement of the summonses and then argued that it was entitled to an evidentiary hearing (and discovery of the documents being sought in the FOIA litigation) before being required to comply. Microsoft’s objections centered on the Quinn Emanuel engagement, with Microsoft contending that the IRS had improperly delegated key aspects of the tax audit and that it was entitled to a hearing to explore exactly what was the firm’s role.

On June 17, the district court granted Microsoft’s motion to conduct an evidentiary hearing. Citing repeatedly to Clarke, the court remarked that Microsoft needed to carry only a “fairly slight burden to trigger an evidentiary hearing.” The court found the hearing appropriate because Microsoft had made a “plausible” showing that the regulation is invalid. The court first observed that the statutory provisions establishing the summons authority do not appear to leave room for delegation to non-government officials. In particular, the term “delegate” of the Secretary of the Treasury is defined as “any officer, employee, or agency of the Treasury Department duly authorized by the Secretary” to perform the delegated task. I.R.C. § 7701(a)(12)(A)(i). Although the court acknowledged that this argument based on the plain language of the statute raised a question of law, the court added that there were “factual questions” raised as well. In support, it pointed to Microsoft’s contention that the IRS had not satisfied the requirements for an exception from notice-and-comment procedures and that the regulation is fatally flawed for being “issued without reasoned analysis.” The court also stated that the timing of the regulation in close proximity to the Quinn Emanuel contract “plausibly raises an inference of improper motive.”

With respect to Microsoft’s specific objection to Quinn Emanuel’s participation, the court made a more convincing case for a hearing to explore factual issues. The court found that the language of the contract suggested that the firm “may be participating in components of the audit examination for which delegation is statutorily proscribed, such as inspecting books and taking testimony.” The court also found that, given the timing of the firm’s retention, Microsoft had plausibly raised an inference that the firm had “played an unauthorized role in the issuance of several IDRs” and might have been provided taxpayer information in violation of section 6103.

The court, however, stated that it was not prepared to accede to Microsoft’s request for document discovery regarding the issuance of the summons. Asserting that a “more stringent” showing of wrongdoing is required to warrant discovery, the court ruled that it would consider the discovery request after the evidentiary hearing, which it scheduled for July 21.

The parties have been skirmishing in advance about how the hearing should be conducted, and those disputes give concrete expression to the concerns the government expressed in Clarke about burdensomeness if evidentiary hearings are too readily allowed in summons enforcement proceedings. The IRS has put forth an official to testify at the hearing who it asserts has the most knowledge of the circumstances surrounding the issuance of the summons. Microsoft, however, wants to examine a more senior official about the bigger picture and has urged the court to require the IRS to make available at the hearing or for deposition Heather Maloy, the soon-to-be ex-Commissioner of LB&I. (Ms. Maloy’s last scheduled day at the IRS is tomorrow, July 10.) Microsoft has also asked the court to order the IRS to provide, 10 days in advance, summaries of the substance of the testimony it intends to introduce at the hearing. The government, for its part, has asked the court to clarify several evidentiary and procedural matters surrounding the hearing. The court heard argument on these various pre-hearing requests at a telephone conference on July 7.

Thus, in addition to the remand decision in Clarke itself, the high-profile Microsoft case promises to shed further light on how the lower courts will approach evidentiary hearings in summons enforcement actions in the wake of Clarke.

As we previously reported, the Supreme Court’s decision in the Clarke summons enforcement case was not a complete victory for the government. The Court set forth a standard that appeared to leave a little more room than before for summoned parties to obtain an evidentiary hearing in resisting summons enforcement actions. The Court left open the possibility that the lower courts on remand could require a hearing in Clarke itself at which IRS officials would have to testify.

The Eleventh Circuit elected not to address this question in the first instance after the Supreme Court remand. Instead, it sent the case straight back to the district court with instructions to reconsider its original enforcement order in light of the Eleventh Circuit and Supreme Court opinions. But the district court saw no reason to change its tune on remand. First, it refused the private respondents’ request to introduce additional evidence in opposition to the summons enforcement request. The district court then issued a six-page opinion rejecting point-by-point—in some instances for lack of evidence—the arguments made by the respondents for why the summons might be thought to be improperly motivated. The respondents have now appealed that latest decision back up to the Eleventh Circuit.

As noted in our previous report, an important aspect of the Supreme Court’s decision was how it dealt with the respondents’ objection that the government sought summons enforcement in order to obtain “discovery” in a Tax Court case that was filed soon after issuance of the summons. The government had argued that this objection carried no weight because the validity of a summons must be judged as of the time of its issuance, and therefore a later action to seek enforcement to aid litigation in the Tax Court could not be invoked as a ground for challenging the summons. The district court had endorsed this argument, but the Supreme Court declined to do so. Instead, the Supreme Court remarked that it was expressing “no view on the issue” and left this question open for the court of appeals to decide on remand. The Court emphasized that, in deciding this issue, the court of appeals would not be confined by the deference ordinarily owed to the district court’s decision on whether or not to order the questioning of IRS agents in a summons enforcement action. Rather, the Supreme Court ruled that this argument implicated a “legal issue about what counts as an illicit motive” on which the court of appeals would have “no cause to defer to the district court.”

That legal issue is now teed up for the court of appeals. The district court’s new opinion on remand essentially repeated the brief analysis of this point from its first opinion, stating that “events occurring after the date of issuance but prior to enforcement should not affect enforceability.” The court of appeals will review that ruling de novo. Having reversed the district court and ordered an evidentiary hearing when it last considered the case, it would not be surprising to see the court of appeals reach the same outcome as before and hold that the government’s conduct in the Tax Court proceedings provides enough justification for the court to hold an evidentiary hearing to explore the IRS’s motivation for issuing the summons.

As expected, the Court this morning reversed the Eleventh Circuit’s decision in Clarke based on the Court’s agreement with the government’s position that the Eleventh Circuit erroneously had required an evidentiary summons enforcement hearing based on nothing more than the bare allegation of an improper purpose. See our previous report here. But the Court’s unanimous opinion, authored by Justice Kagan, went on to attempt to provide guidance for future disputes over the availability of such hearings, including the resolution of this case on remand, and that guidance could perhaps lead courts to allow such hearings more often than in the past.

The Court summarized the standard to be applied by a court in considering the summoned party’s request for a hearing as follows: “whether the [summoned party has] pointed to specific facts or circumstances plausibly raising an inference of improper motive.” It elaborated on that standard to some extent elsewhere in the opinion, although the general language still leaves considerable room for interpretation by the lower courts:

“[T]he taxpayer is entitled to examine an IRS agent when he can point to specific facts and circumstances plausibly raising an inference of bad faith. Naked allegations of improper purpose are not enough: The taxpayer must offer some credible evidence supporting his charge. But circumstantial evidence can suffice to meet that burden; after all, direct evidence of another person’s bad faith, at this threshold stage, will rarely if ever be available. And although bare assertion or conjecture is not enough, neither is a fleshed out case demanded: The taxpayer need only make a showing of facts that give rise to a plausible inference of improper motive. That standard will ensure inquiry where the facts and circumstances make inquiry appropriate, without turning every summons dispute into a fishing expedition for official wrongdoing.”

The immediate result of the decision is a remand to the Eleventh Circuit to determine whether the district court’s refusal to order an evidentiary hearing comported with this standard. The Court did not express a view on whether the evidence that the private parties had put forth (alleging retaliation for failure to agree to a statute of limitations extension and an ulterior motive to conduct the equivalent of discovery for the Tax Court case) met the standard, stating that whether those purposes would be improper was not within the question presented to the Court. But the Court did set forth some principles for how the Eleventh Circuit should go about reviewing the district court’s decision.

At the outset, the district court’s decision is entitled to deference and is reviewed for abuse of discretion. But the Court emphasized “two caveats” to that discretion. First, no deference is owed if the district court did not apply the correct standard. Second, no deference is owed to the district court’s decision on “legal issues about what counts as an illicit motive.”

In that connection, the Court proceeded to state that this second caveat encompassed the issue to which the private parties have attached considerable importance – namely, the contention that the IRS was seeking to enforce the summons only in order to obtain discovery for the Tax Court proceedings. The district court had agreed with the government that this would not constitute an improper purpose because the validity of a summons should be judged as of the time of issuance (which was before the Tax Court proceedings were initiated), not as of the time the IRS moves to enforce the summonses. The Supreme Court declined to endorse that argument, inviting the Eleventh Circuit to consider it as a legal issue on which it owes no deference to the Tax Court.

Thus, the government has dodged a bullet in Clarke, with the Supreme Court reversing the Eleventh Circuit and rejecting the proposition that IRS agents can be hauled into an evidentiary hearing on the basis of a bare allegation of improper purpose. But the government could well find itself facing a loss again on remand when the Eleventh Circuit applies the standard set forth in Clarke to the evidence in this case. There is nothing in the Supreme Court’s opinion to discourage the Eleventh Circuit (presumably the same judges who already voted once to afford an evidentiary hearing in this case) from concluding that the private parties here did make a sufficient showing because, as a matter of law, it is improper for the IRS to move to enforce a summons for the purpose of obtaining information to be used in pending Tax Court proceedings. It will be worth following the remand proceedings in the court of appeals to see how the Eleventh Circuit deals with this issue.

It is now six weeks since the Supreme Court heard argument in Clarke regarding the circumstances under which a court must convene an evidentiary hearing in a summons enforcement proceeding to allow IRS officials to be questioned regarded their reasons for issuing the summons. Based on the way the case was litigated and the questions at oral argument, the government is likely rooting for a relatively narrower opinion, whereas taxpayers who might someday be disputing a summons hope that the Court will take this opportunity to elaborate and provide new guidance on summons enforcement proceedings.

The dichotomy between a broad approach and a narrow approach has been reflected all through this case, beginning with the divergent ways in which the two parties framed the summons dispute in their questions presented. See our prior coverage here. The government has sought to focus narrowly on the precise holding of the court of appeals, while the private parties have asked the Court to look more broadly at all the circumstances of the case and to take a fresh look at how summons enforcement proceedings are generally conducted.

Specifically, the government contended from the start that the Eleventh Circuit had laid down an indefensible blanket rule that a party is entitled to an evidentiary hearing to challenge a summons so long as it alleges an improper purpose. That rule, according to the government, would dramatically increase the extent to which IRS agents are hauled into court for evidentiary hearings and is inconsistent with longstanding summons enforcement law. The parties challenging the summons enforcement proceeding, conversely, have argued that the Eleventh Circuit decision was narrower, pointing to the facts in this case that supported their allegations, albeit facts that for the most part were not relied upon by the court of appeals. Notably, the government has acknowledged that a district court has considerable discretion in deciding when an evidentiary hearing should be held and conceded that a district court appropriately could have scheduled a hearing here. The government objects only to the court of appeals ordering the district court to hold an evidentiary hearing when the district court had already exercised its discretion to deny the private parties’ hearing request.

The Justices inquired into both approaches to the case during the oral argument. It appeared that the Court was in harmony with the government’s narrow view of the Eleventh Circuit’s holding and thus of the bare minimum that has to be decided in the case. In fact, when government counsel began the argument by attacking the court of appeals’ specific statements, Justice Scalia quickly interjected to say that the other side “concedes all that” and that “nobody defends what the lower court said here.”

But the questioning also suggested that the Court might not be content to write an opinion that does the bare minimum – that is, one that just reverses the court of appeals for requiring an evidentiary hearing based on no more than a bare allegation of an improper purpose. Rather, the Court expressed plenty of interest in other aspects of the summons enforcement procedure and raised the possibility that it would use this decision as a way of giving more guidance to trial courts on when hearings would be appropriate in handling these proceedings. Indeed, Justice Alito criticized one of government counsel’s suggestions as not being “very helpful to a district judge” and the Chief Justice noted a desire to give “clearer guidance.” Thus, there appears to be a good possibility of a decision reversing the Eleventh Circuit, and thus ruling for the government, but containing language to guide district courts in the future that the government could find problematic.

In particular, the Justices showed interest in the point on which the private parties laid the most stress in arguing that they had evidence of an improper purpose – namely, the circumstances strongly indicating that the IRS was seeking to enforce the summonses as a way of developing evidence for the Tax Court proceeding rather than for the audit. The government had argued that this issue was not before the Court since the Eleventh Circuit did not rely on it, and also contended that there was no caselaw holding that this was an improper purpose. It also argued that the improper purpose determination relates to the issuance of the summonses and therefore is not to be based on the situation at the time of the enforcement proceedings. It is not apparent, however, that these arguments will carry the day. At least four Justices (Kennedy, Alito, Breyer, Ginsburg) showed interest in this point and evinced some degree of concern whether it would be proper for the IRS to enforce the summonses to aid its position in the Tax Court proceedings. Justice Breyer did question whether, given the posture of the case, the Court could decide the legal question whether aiding the Tax Court proceedings would be an improper purpose. Thus, there is a good chance that the Court’s opinion will leave this issue to be resolved on remand.

At the end of the argument, Justice Kagan asked government counsel to elaborate on what kind of evidence the government would agree would overcome the presumption that a summons was issued for a proper purpose. Counsel pointed to the two improper purposes identified in Powell – harassment and an attempt to pressure the taxpayer into settlement in a collateral matter – asserting that the taxpayer ought to have some evidence in its possession if the latter purpose existed. The Court may be tempted in Clarke to crack open the door a bit more for allegations of improper purpose, but it is unlikely to throw the door open as wide as the Eleventh Circuit appears to have done.

In any event, the answer will come soon. The Court could issue its decision as early as Thursday, and will almost certainly act by the end of June.

The parties resisting summons enforcement have filed their brief in the Supreme Court in Clarke responding to the government’s opening brief. Underlying the two sets of briefs is a fundamentally different perspective on the significance of holding an evidentiary hearing at which the agent issuing the summons can be questioned about his motives. For the government, such a hearing is a big deal, and the courts should not impose that burden on the IRS on the basis of a mere allegation of an improper purpose. For the summoned parties, such a hearing is a very limited intrusion that must be allowed upon a plausible allegation of bad faith if the notion of judicial oversight of summonses is to have any teeth at all. They argue that, “[f]or the judiciary to fulfill its function of safeguarding against abusive summonses, it cannot be entirely dependent on one-sided submissions by the government attesting in conclusory fashion that its summons is being pursued for a proper purpose.”

Thus, the summoned parties argue that the government’s position would “transform summons enforcement into an ex parte affair” because there would be no effective way to challenge the “pro forma showing” of government good faith made by an agent’s affidavit. The summoned party in most cases cannot realistically meet the government’s requirement that it show independent evidence of bad faith before having a hearing because that knowledge “is peculiarly within the knowledge or files of the Service”; the government’s proposed rule thus imposes a “circular burden” because the point of the hearing is give the summoned party the opportunity to develop that evidence. The brief rejects the government’s accusation that the Fifth Circuit has created a presumption of government irregularity. Rather, the brief argues that the presumption of regularity is intact, but the Fifth Circuit’s approach “simply allows the taxpayer an opportunity to overcome that presumption.” As the summoned parties see it, the government’s “position is not merely that it should receive the benefit of the doubt, but that in practice it should be immune from questioning.”

The brief then addresses why the Court should agree that the summoned parties have made a sufficiently plausible showing of bad faith to justify a hearing. As with its brief at the petition stage, this argument focuses primarily on the evidence showing that the government was interested in getting information that would assist with the Tax Court litigation, not in conducting an administrative investigation into tax liability. As noted in our first report on this case, the court of appeals did not rely on that evidence, and the courts thus far have not held that a motivation to assist with Tax Court litigation is an improper purpose that justifies denying enforcement of a summons. Perhaps recognizing that it may be tough to win in the Supreme Court on the present state of the record, the summoned parties specifically request an opportunity to litigate that issue, stating “if this Court vacates the judgment below, it should remand so that the court of appeals can consider whether evidence that the IRS is using a summons only to circumvent Tax Court discovery rules provides grounds for denying enforcement of the summons.”

The government has filed its opening brief in Clarke. The brief, which is quite short for a Supreme Court brief, hews closely to the arguments made in the petition for certiorari. As we noted in our previous report, the government and the parties resisting summons enforcement took a very different view at the petition stage of the quantum of evidence that formed the basis for requiring the evidentiary hearing in this case. The private parties contended that they had made “substantial allegations” that the summonses were for an improper purpose, while the government referred to those allegations as “unsupported.”

The brief begins by emphasizing that, however the private parties choose to describe the evidence supporting their allegations, the holding of the Fifth Circuit was that a party is entitled to an evidentiary hearing at which it can question IRS officials about their motives in issuing a summons “whenever a taxpayer makes an ‘allegation of an improper purpose.’” Indeed, the government argues, the court of appeals specifically rejected the idea that the taxpayer’s allegations must be “substantial” or supported by evidence, pointing to the court’s statement that “requiring the taxpayer to provide factual support for an allegation of an improper purpose, without giving the taxpayer a meaningful opportunity to obtain such facts, saddles the taxpayer with an unreasonable circular burden.”

Thus, the government is willing to concede that, “if an objector presents evidence to support an inference of improper motive—or if a district court otherwise believes that such an opportunity for examination is appropriate—the district court may hold a hearing and require IRS agents to justify their actions.” But here, the government maintains, the court of appeals “erroneously reduced to zero the amount of evidence that is required to rebut a showing of good faith.”

With the question framed in this way, the government presents its arguments concisely. It argues that requiring an evidentiary hearing based on a mere allegation of improper purpose undermines Congress’s intent that summons enforcement proceedings be summary and expeditious. Instead, it would afford summoned parties the opportunity to “delay the resolution of summons-enforcement proceedings merely by alleging that the summons was issued for an improper purpose.” In addition, the government argues that the court of appeals’ approach infers wrongdoing on the part of a government official without evidence, which violates the “presumption of regularity” that public officials are presumed to have properly discharged their duties.

The response brief of the parties resisting the summons is due in mid-March. Oral argument has been scheduled for April 23.

The Supreme Court has granted certiorari in United States v. Clarke, No. 13-301, to explore the circumstances under which an entity is entitled to an evidentiary hearing before an IRS summons is enforced, so that it can question IRS officials about their motives for issuing the summons. The parties’ different views of the case are aptly captured by the dueling questions presented. The government says the case presents the question “whether an unsupported allegation” that the IRS issued a summons for an improper purpose entitles an opponent to examine IRS officials at an evidentiary hearing. The entities contesting the summons say the case presents the question whether the court erred in ordering such an evidentiary hearing “in light of [their] substantial allegations that the IRS had issued summonses to them for an improper purpose.”

The basic summons enforcement rules are long established, but the devil can be in the details. Under United States v. Powell, 379 U.S. 48 (1964), a summons is to be enforced if the IRS demonstrates that: (1) “the investigation will be conducted pursuant to a legitimate purpose”; (2) “the inquiry may be relevant to the purpose”; (3) the IRS does not already have the information; and (4) the IRS followed the proper administrative steps. The IRS generally carries its initial burden simply by producing an affidavit from the investigating agent, which then shifts the burden to the party contesting the summons. At that point, it gets a little murkier. If the party contesting the summons raises a “substantial question” as to whether the summons is an abuse of process, then it is entitled to an “adversary hearing” at which it “may challenge the summons on any appropriate ground.” Id. at 58.

What happened here is that the IRS wanted to look more carefully into a partnership’s tax returns, particularly its claim of $34 million in interest expenses over two years. Although the partnership agreed to two extensions of the statute of limitations, it declined to extend the period a third time. Shortly thereafter, the IRS issued six summonses to third parties connected to the partnership, but those parties did not comply with the summonses. Just before the limitations period closed, the IRS issued a notice of Final Partnership Administrative Adjustment (FPAA) to the partnership, and the partnership challenged the FPAA by filing a petition in the Tax Court. A couple of months later, the IRS filed summons enforcement actions.

The summoned parties, who are the respondents in the Supreme Court, responded by contending that the summonses were not issued for a legitimate purpose and requesting an evidentiary hearing and discovery. They basically made two arguments. First, they contended that the summons was issued in retaliation for the partnership’s refusal to extend the statute of limitations, pointing to the fact that the summonses were issued very soon after that refusal was communicated. Second, they contended that the summonses were designed to circumvent the Tax Court’s restrictions on discovery. They advanced some evidence to support this contention, including the IRS’s request for a continuance in the Tax Court on the ground that the summonses were outstanding.

The district court (for the Southern District of Florida) ordered the summonses enforced, stating that a hearing is not required based on a “mere allegation of improper purpose” to retaliate. With respect to respondents’ second contention, the district court said that a finding that the IRS was using the summons process to avoid discovery limitations in the Tax Court would not be a valid ground for quashing a summons.

The Eleventh Circuit reversed in an unpublished opinion. It ordered the district court to hold an evidentiary hearing at which respondents could question the IRS examining agent about his motives for issuing the summonses (though the court declined to authorize discovery). The court explained that the district court had abused its discretion because the respondents were entitled to a hearing “to explore their allegation” that the summonses were issued “solely in retribution for [the partnership’s] refusal to extend a statute of limitations deadline.”

The difference in the way the two parties have phrased the question presented reflects the two different grounds on which the respondents challenged the summonses. The allegation that the summonses were a form of retaliation or punishment, instead of for a legitimate investigative purpose, is pretty close to an “unsupported allegation.” That the summons followed closely on the heels of the decision not to extend the statute of limitations is weak evidence of an improper retaliatory purpose, though, as the respondents point out, it is hard to have strong evidence of a retaliatory purpose without having discovery or a hearing. Thus, the respondents may have a hard time defending the court of appeals decision on its own terms.

On the other hand, the respondents will be able to advance their second basis for challenging the summonses as an alternate ground for affirmance, even though the court of appeals did not rely upon it. On that ground, the respondents have more than an “unsupported allegation” – they are more like “substantial allegations” – that the summonses were designed to obtain evidence for use in the Tax Court proceedings that could not have been obtained through discovery. The government’s response on this point is the same as that of the district court – namely, that these allegations, if true, would not demonstrate an illegitimate purpose and would not be grounds for quashing the summons. Two courts of appeals have reached this issue and have agreed with the government. On the other hand, respondents have a logical argument that a summons is an investigative tool and the investigation phase is over by the time the FPAA has issued and the case has been docketed in the Tax Court. Respondents note in this connection that the IRS’s own Summons Handbook states that, “[i]n all but extraordinarily rare cases, the Service must not issue a summons” after a notice of deficiency is mailed because at that point “the Service should no longer be in the process of gathering the data to support a determination because the [notice of deficiency] represents the Service’s presumptively correct determination and indicates the examination has been concluded.” This second ground not reached by the court of appeals thus may prove to be the more interesting and closely contested aspect of this case.

To add a little more spice to this case, the Court’s determination to revisit summons enforcement comes at a time when the IRS may significantly increase its use of its summons power. On January 2, 2014, a new policy went into effect for audits of the largest taxpayers that threatens the issuance of a summons when a taxpayer fails to timely respond to requests for documents and/or information. The new policy sets out a mandatory timeline for warning letters and a drop-dead due date, after which the examining agent will initiate procedures for the issuance of a summons. This policy could well lead to many more summons enforcement proceedings. For more information on the IRS’s new IDR enforcement policy, please contact George A. Hani (ghani@milchev.com) or Mary W. Prosser (mprosser@milchev.com).

The government’s opening brief is due February 24. The case will be argued in late April and a decision is expected by the end of June.

The Supreme Court this morning ruled 9-0 in favor of the government on both issues in Woods, holding that: (1) there is partnership-level TEFRA jurisdiction to consider the appropriateness of a penalty when the partnership is invalidated for lack of economic substance; and (2) the 40% valuation overstatement penalty can apply in that setting on the theory that the basis of a sham partnership is zero and therefore the taxpayers overstated their basis. See our prior coverage here. The opinion, authored by Justice Scalia, is concise and appears to resolve definitively both issues that had previously divided the lower courts.

On the jurisdictional issue, the Court began by pointing to Code section 6226(f), which establishes partnership-level jurisdiction for “the applicability of any penalty . . . which relates to an adjustment to a partnership item.” Accordingly, the Court found, the question “boils down to whether the valuation-misstatement penalty ‘relates to’ the determination” that the partnerships were shams. On that point, the Court agreed with the government’s “straightforward” argument that “the penalty flows logically and inevitably from the economic-substance determination” because the trigger for the valuation overstatement calculation is the conclusion that a sham partnership has zero basis.

The Court rejected the taxpayer’s argument (previous adopted by the Federal and D.C. Circuits) that there can be no partnership-level determination regarding “outside basis” because some partner-level determinations are necessarily required to conclude that outside basis has been overstated. The Court found that this approach is inconsistent with TEFRA’s provision that the applicability of some penalties must be determined at the partnership level. If the taxpayer’s position were correct, the Court stated, it “would render TEFRA’s authorization to consider some penalties at the partnership level meaningless.” The Court stressed that the partnership-level applicability determination is “provisional,” meaning that individual partners can still raise partner-level defenses, but the partnership-level proceeding can determine an overarching issue such as whether the economic-substance determination was categorically incapable of triggering the penalty. In the Court’s view, “deferring consideration of those arguments until partner-level proceedings would replicate the precise evil that TEFRA sets out to remedy: duplicative proceedings, potentially leading to inconsistent results, on a question that applies equally to all of the partners.”

With respect to the merits issue of the applicability of the 40% penalty, the Court relied on what it regarded as the “plain meaning” of the statute. The text applies the penalty to tax underpayments attributable to overstatements of “value . . . (or the adjusted basis)” of property. Finding that the parentheses did not diminish or narrow the import of the latter phrase, the Court concluded that a substantial overstatement of basis must trigger the 40% penalty and that such an overstatement occurred in this case. Because the term “adjusted basis” “plainly incorporates legal inquiries,” the Court was unpersuaded by the taxpayer’s argument that the penalty applies only to factual misrepresentations of an asset’s value or basis. As we have previously noted (seehere and here), both the taxpayer and an amicus brief filed by Prof. David Shakow set forth considerable evidence that the intent of Congress in enacting the 40% penalty was to address factual overstatements, not overstatements that flow from legal errors. The Court, however, stated that it would not consider this evidence, which is found in legislative history and in the IRS’s prior administrative practice, because “the statutory text is unambiguous.”

In addition, the Court rejected the reasoning of the Fifth Circuit that the underpayment of tax was “attributable to” a holding that the partnership was a sham, not to an overstatement of basis. The Court instead adopted the reasoning of Judge Prado’s opinion in the Fifth Circuit (which had questioned the correctness of binding circuit precedent) that, “in this type of tax shelter, ‘the basis understatement and the transaction’s lack of economic substance are inextricably intertwined.'”

At the end of the opinion, the Court addressed an issue of statutory interpretation that has broader implications beyond the specific context of Woods. The taxpayer had relied on language in the Blue Book, and the Court stated in no uncertain terms that the Blue Book is not a relevant source for determining Congressional intent. Rather, it is “post-enactment legislative history (a contradiction in terms)” that “is not a legitimate tool of statutory interpretation.” The Court acknowledged that it had relied on similar documents in the past, but suggested that such reliance was a mistake, stating that more recent precedents disapprove of that practice. Instead, the Blue Book should be treated “like a law review article”— relevant only if it is persuasive, but carrying no special authority because it is a product of the Joint Committee on Taxation.

The Supreme Court held oral argument in United States v. Woods on October 9. As we have previously reported, the case presents two distinct questions: (1) a TEFRA jurisdictional question concerning whether the court could determine the applicability of the valuation overstatement penalty in a partnership-level proceeding; and (2) the merits question whether the 40% penalty applied when the partnership was found not to have economic substance and therefore the basis claimed by the taxpayers in the partnership was not recognized.

Most of the argument time for both advocates was spent on the jurisdictional issue, as the Justices often seemed genuinely confused about how TEFRA is generally supposed to work and about the respective positions of the parties on how the statutory provisions should be interpreted in the circumstances of this case. [For example, Justice Sotomayor: “what is this case a fight about?” “Could you give me a concrete example, because I’m not quite sure about what you’re talking about.” Justice Breyer: “I am genuinely confused. I have read this several times.”] Thus, a higher percentage of the Justices’ questions than usual appeared designed simply to elicit information or alleviate confusion, rather than to test the strength of the advocate’s position.

Justice Sotomayor began the questioning by suggesting to government counsel, Deputy Solicitor General Malcolm Stewart, that there was an “incongruity” in its position in that it was acknowledging that there were partner-level issues that precluded a final determination of penalty liability until the partner-level proceeding, yet it was insisting that the penalty could be imposed without a notice of deficiency prior to the partner-level proceedings. Mr. Stewart responded that a taxpayer would have an opportunity before the penalty is imposed to make the kinds of broad objections that are at issue in this case. He would have to file a partner-level refund suit only if he had undeniably partner-specific issues like a good faith reasonable cause defense, and Congress contemplated that there would not be a prepayment forum for those kinds of issues.

Justice Kagan suggested that the government’s position essentially was “what you do at the partnership level is anything that doesn’t require looking at an individual’s tax return”; Mr. Stewart agreed, but he said that he preferred to state the position as “any question that will necessarily have the same answer for all partners should presumptively be resolved at the partnership level.”

Chief Justice Roberts asked Mr. Stewart about the D.C. Circuit’s reasoning in Petaluma that the penalty issue related to outside basis and therefore could not be resolved at the partnership level even if the answer was obvious. Mr. Stewart began his response by agreeing (as the government has throughout the litigation) with the proposition that “outside basis, in and of itself, is not a partnership item,” but this observation triggered some questions looking for clarification. Justice Scalia asked why outside basis would vary from partner to partner, and Justice Kennedy suggested that the government was arguing that “outside basis in this case is necessarily related to inside basis” – a formulation that Mr. Stewart rejected. The result was that the last few minutes of Mr. Stewart’s argument on the jurisdictional point were diverted into explaining that the government was not making certain arguments being suggested by the Court.

When Gregory Garre began his argument for the taxpayers, Justice Kagan zeroed in on the statutory text and asked if the case didn’t just boil down to whether the “related to a partnership item” language in the statute required that the relationship be direct [taxpayers’ view] or could be satisfied if the relationship were indirect [government’s view]. Mr. Garre responded by arguing that the government’s position was more at variance with the statutory text than she had suggested because the statute gives a partnership-level proceeding jurisdiction over “partnership items” and outside basis concededly was not a partnership item. Justice Scalia, and later Justice Kagan, pushed back against that answer by noting that the statute establishes jurisdiction over more than partnership items. Justice Kennedy chimed in to note that penalties are always paid by the partners, not the partnership itself, yet TEFRA contemplates that some penalties are determined at the partnership level.

Mr. Garre then emphasized that this penalty could not be determined at the partnership level because “outside basis isn’t reported anywhere at all on the partnership” return. Justices Scalia and Breyer both blurted out “so what” in response. There followed a long colloquy in which Mr. Garre argued to Justice Breyer that the difference between overstatements of outside basis and inside basis was of jurisdictional significance. Justice Breyer appeared unconvinced, suggesting instead that the partnership itself is a partnership item, and therefore the penalty based on shamming the partnership should also be regarded as a partnership item. Mr. Garre replied that the penalty was for overstating outside basis, which concededly is not a partnership item.

Justice Ginsburg showed great interest in the recently enacted economic substance penalty, asking about it on three different occasions. Although that new penalty is not applicable to the tax years at issue in this case, the taxpayers had argued that its enactment showed that Congress did not agree with the government’s position – namely, that the valuation overstatement penalty already on the books would apply when partnerships are found to lack economic substance. With respect to jurisdiction, Mr. Garre confirmed that the new penalty could be imposed at the partnership level because it is based on shamming the transaction, a partnership-level determination. With respect to the merits, the advocates unsurprisingly responded differently to Justice Ginsburg’s questions. Mr. Stewart stated that, although there was some overlap between the new penalty and the overstatement penalty at issue in this case, the overlap was not total, and it is not anomalous to have some degree of overlap. Therefore, enactment of the new penalty was not inconsistent with the government’s position. Mr. Garre, by contrast, asserted that the new penalty “that Congress passed to cover this situation here solves all the problems,” and thus it would be wrong for the Court “to fit a square peg into a round hole” by applying the valuation overstatement penalty to this situation. Chief Justice Roberts later asked about how the new penalty operates as well.

Mr. Garre then emphasized the “practical consequences” of resolving the penalty issue at the partnership level – specifically, that it would allow the government to impose the penalty without making a prepayment forum available for the taxpayer to contest it. Justice Sotomayor had begun the argument by asking Mr. Stewart about this point, and now she switched sides and asked Mr. Garre why that was inappropriate when it was “obvious” that the partner was going to claim a nonzero basis. Mr. Garre responded that, obvious or not, the court could not create jurisdiction by “assuming a fact necessary to the penalty.”

Justice Scalia had asked Mr. Stewart whether pushing the penalty determination to the partner level would open the door to inconsistent outcomes on the same legal issue. That was a friendly question, and Mr. Stewart happily agreed. When Justice Scalia asked Mr. Garre the same question, it led to a more extended discussion with several Justices. Mr. Garre initially responded that there was no danger of inconsistent outcomes on the merits issue because the Supreme Court’s resolution of that issue would be binding on everyone. Although different outcomes could occur because different partners have different outside basis, that is what Congress intended and is the reason why TEFRA provides for partner-level proceedings. Justice Scalia then asked about the possibility of different results on whether the partnership was a sham, but Mr. Garre pointed out that this determination was properly made at the partnership level and would apply equally to all partners. Chief Justice Roberts, however, questioned whether the asserted need for a partner-level determination of outside basis was mostly theoretical, asking: “does your case hinge on the perhaps unusual situations where you have one of these partners having a fit of conscience and decides to put down the real number or has some other adjustment to it?” Mr. Garre responded “largely, yes,” but added that the statute did not allow these determinations to be made at the partnership level even if they are obvious, and that where individual transactions are shammed (instead of the entire partnership), it will not be obvious that the basis is overstated. Justice Sotomayor remarked that she was confused by the individual transaction point, but she did not press Mr. Garre on the point after he explained it a second time.

The jurisdictional discussions left so little time for the advocates to address the merits that the argument did not shed much light on the Justices’ views on the applicability of the valuation overstatement penalty. During the government’s argument, Justice Ginsburg finally moved the discussion to the merits by asking the question about the new economic substance penalty discussed above. One other question followed from Chief Justice Roberts in which he asked Mr. Stewart to respond to one of the taxpayers’ main arguments – namely, that there is not an overvaluation of an amount here but instead a determination wiping out the entire transaction. Mr. Stewart responded that it was appropriate to apply the valuation overstatement penalty because “the whole point of the avoidance scheme was to create an artificially inflated basis.”

Mr. Garre also moved to the merits issue late in his argument. He began by emphasizing that Congress clearly aimed this penalty at the fundamentally different situation where the taxpayer misstated the amount of the value. Justice Kagan interjected to say that he was describing “the prototypical case,” but that didn’t have to be the only case, and the statute was drafted more broadly. Mr. Garre responded that “context, punctuation, pre-enactment history, post-enactment history and structure” supported the taxpayers’ position, but Justice Kagan rejoined skeptically that “you’re saying they have text, and you have a bunch of other things.” Mr. Garre then expanded on his answer, stating that the reference to “basis” in the statute “comes in a parenthetical, subordinate way” and thus must be related to an overvaluation, not to a situation where “the thing doesn’t exist at all.” He then ended his argument by noting that tax penalties are to be strictly construed in favor of the taxpayer and by inviting the Court to review the amicus brief filed by Prof. David Shakow for examples of other situations that would be mistakenly swept into the valuation overstatement penalty if the government were to prevail.

On rebuttal, Justice Breyer quickly interrupted to ask about his theory that the jurisdictional issue must be resolved in the government’s favor because the existence of the partnership is a “partnership item,” noting his concern that this approach might be too “simple” given that three courts had gone the other way and that he did not “want to say that you are right for the wrong reasons.” Before Mr. Stewart could respond, however, Chief Justice Roberts asked if he could “pose perhaps a less friendly question.” He then asked Mr. Stewart to comment on an analogy drawn by Mr. Garre to a taxpayer who claims a deduction for donating a $1 million painting when in fact he never donated a painting at all. That situation would involve a misstatement, but not a valuation misstatement, and Mr. Garre argued that in both situations the valuation misstatement penalty would be inapplicable. Mr. Stewart, however, sought to distinguish the painting example from this case because the IRS did not determine that the underlying currency transactions did not occur, just that the partnerships were shams. Chief Justice Roberts appeared unpersuaded by this distinction, commenting that calling the partnerships shams was “like saying that there were no partnerships,” so it seemed that the situations were “pretty closely parallel.”

Given the nature of the questioning, it is harder than usual to draw any conclusions from the oral argument, except perhaps that the Court (or at least the Justice who is assigned to write the opinion) is regretting its decision to add the jurisdictional question to the case. Justice Scalia appeared solidly on the side of the government on the jurisdictional question. Justice Breyer appeared to be leaning that way as well, but on a theory not espoused in the briefs that he himself seemed to recognize might not withstand more rigorous analysis. Conversely, Chief Justice Roberts referred several times to the D.C. Circuit’s Petaluma decision, perhaps indicating that he finds its reasoning persuasive. In the end, most of the Justices seem still to be figuring the case out, and we will have to wait to see where they come out.

The D.C. Circuit heard oral argument on September 24 in the government’s appeal in Loving from the district court decision enjoining the IRS from enforcing its new registration regime for paid tax return preparers. The panel consisted of Judges Sentelle, Williams, and Kavanaugh. The court was active, jumping in with questions in the first minute of the government’s opening presentation. The court asked several questions of the plaintiffs’ counsel as well, but those questions seemed to evince less skepticism of the advocate’s position. While it is always hazardous to predict the outcome based on the oral argument, the court of appeals certainly seemed to be leaning towards affirming the district court.

As we have previously discussed, the government’s position relies heavily on Chevron deference to its new tax return preparer regulations. It argues that the statutory authority to regulate practice before Treasury is sufficiently broad to encompass tax return preparers — specifically, that the term “practice of representatives of persons before the Department of the Treasury” is ambiguous and could reasonably be construed by the regulations to include persons who prepare tax returns. The relevant language is currently codified at 31 U.S.C. § 330(a)(1), but it dates back to 1884, when Congress responded to complaints about misconduct by claims agents who represented soldiers with claims for lost horses or other military-related compensation from the Treasury.

Just 30 seconds after the argument began, Judge Sentelle stepped in to challenge the premise of government counsel Gil Rothenberg that the Treasury regulations were valid because the statute did not “foreclose” them. Judge Sentelle maintained that the question instead was whether the statute “empowered” Treasury to regulate in this area, and the case could not be analyzed by assuming that Treasury had unlimited power except to the extent that Congress had explicitly foreclosed it. Shortly thereafter, Judge Williams questioned the government’s failure, in his view, to provide any support for the notion that the ordinary use of the statutory terms, like “representative” or “practice,” could encompass a tax return preparer who merely helps a taxpayer “fill out a form” that he is obliged to file with the IRS. Mr. Rothenberg responded that, although there were no cases on point, return preparers do more than “fill out a form” and that the statutory term “representative” cannot be limited to an agency relationship because the term was intended to retain the same meaning as the original 1884 statute, which applied to “agents, attorneys, or other persons representing claimants.”

Judge Sentelle then suggested that the fact that Treasury had not claimed any authority to regulate tax return preparers until now, even though the statute had been on the books for more than a century, cast some doubt on the existence of that authority. Judge Kavanaugh added that Congress’s enactment of legislation regulating tax return preparers during that period also suggested that Congress did not think that it had delegated that authority to the Treasury Department. Mr. Rothenberg responded that the administrative process is an “evolving process,” and Treasury was free to “choose” not to regulate for many years and then later to invoke its latent authority to regulate. Later, he added that the need to regulate the competence of tax return preparers is greater today than it was decades ago when taxpayers could more easily avail themselves of direct assistance from the IRS in filling out their return. With respect to the legislation, Mr. Rothenberg distinguished laws that impose after-the-fact sanctions on return preparers from the Treasury initiative to impose up-front “admission” requirements. Judge Sentelle questioned why the regulations are limited to paid return preparers, but do not cover persons who prepare tax returns for free. Mr. Rothenberg responded that Treasury was tackling the problem one step at a time and reasonably believed that the biggest problem was with unqualified persons marketing their ability to prepare returns.

Judge Kavanaugh then zeroed in on the statutory text, pointing out that section 330 (a)(2)(D) states that Treasury “may . . . require” that “representatives” demonstrate their “competency to advise and assist persons in presenting their cases.” That language indicates that Congress understood that the “representatives” who could be regulated were persons who would assist in “presenting cases,” not just filling out returns. Mr. Rothenberg disagreed, arguing that Treasury was not compelled to impose all of the requirements set forth in subsection (a)(2) and that the other three requirements could apply to tax return preparers. Judge Sentelle expressed some doubt whether that position was consistent with the statutory use of the conjunctive “and” in joining the four subsections of (a)(2). Judge Williams then suggested that these were four different characteristics of representatives, but that the language of (a)(2)(D) in that case still bore some relevance to interpreting the term “representatives” in (a)(1). Mr. Rothenberg again disagreed, stating that the discussion was now focused on what he believed to be the fundamental error of the district court — namely, treating all four characteristics of section (a)(2) as mandatory, because that would exclude otherwise able practitioners from representing taxpayers before Treasury simply because they lacked advocacy skills. He also noted the position taken in the amicus brief of former IRS Commissioners that the “presenting a case” language could encompass preparing a tax return, but Judge Sentelle retorted that this would be an “awfully strange” use of the language.

Mr. Rothenberg then closed his argument by reiterating the government’s position that the district court erred in reading (a)(2) as limiting the language of (a)(1) and that (a)(1) itself did not foreclose Treasury from regulating tax return preparers. Therefore, Chevron deference is owed to those regulations.

Counsel for the plaintiffs, Dan Alban, began his argument by maintaining that there was no statutory authorization for the regulation. He described the statute as clearly focused on Treasury’s controversy and adjudicative functions, such as examination of returns and appeals before the agency, and not on what he described as “compliance” functions like filing a tax return. He also pointed to the “presenting their cases” language in subsection (a)(2), stating that no “case” exists until there is a dispute over the taxpayer’s return. Judge Williams asked about evidence that the scope of the original 1884 statute was limited to claims that were being resisted by the government — that is, controversies. Mr. Alban replied that it was clear that the statute was addressing claims that the claimants chose to bring, rather than a mandatory function like filing a tax return. In addition, he noted, the legislative history indicates that these were “contested” claims and that the representatives were standing in the shoes of the claimants. Here, by contrast, tax return preparers are not “representatives” before the agency. Judge Kavanaugh then asked who the preparers are representing. Mr. Alban replied that they are not representatives of anyone; they are just performing a service in assisting preparation of the return, but the taxpayer himself has to sign it. He noted in that connection that tax return preparers are not required to obtain a power of attorney, unlike taxpayer representatives in agency proceedings.

The court challenged Mr. Alban when he argued that the “level of policy decision” here warranted caution in allowing an agency, rather than Congress, to implement this new regulatory regime. Judge Sentelle noted that counsel couldn’t get much “traction” with that argument when the D.C. Circuit frequently deals with “sweeping regulations” that create major changes in the regulatory landscape. Judge Kavanaugh observed that, even if counsel was merely stating that the significance of the change ought to color the court’s approach to finding ambiguity, the suggestion was unworkable because it is hard for a court to decide what is “major.”

Finally, Judge Sentelle asked about the impact of the Supreme Court’s recent decision in City of Arlington holding that Chevron deference is owed to an agency’s determination of the scope of its jurisdiction. Mr. Alban stated that the decision was not directly applicable, but in any case the Supreme Court had made clear in that case the importance of seriously applying the limitations on Chevron deference. Here, because the statute was not ambiguous, Mr. Alban stated, the government’s position fails at Chevron Step 1, and therefore no deference is owed. Putting aside the discussion of broader administrative law principles, it was not apparent that any of the judges on the panel disagreed with the plaintiffs on that basic point regarding section 330(a).

Mr. Rothenberg began his rebuttal with a general discussion of Chevron principles, stating that all the prior cases in which the D.C. Circuit had invalidated regulations at Chevron Step 1 were situations where the agency action was more clearly foreclosed by a specific Congressional determination found in the statutory text, but he was met with considerable resistance. The judges observed that his list did not appear to be “exhaustive.” In particular, Judge Sentelle suggested that this case was perhaps analogous to the American Bar Ass’n case, which he described as invalidating FTC regulations directed at the legal profession on the ground that Congress had not empowered the FTC to regulate that profession. When Mr. Rothenberg answered in part that Chevron Step 1 sets a “low bar,” Judge Kavanaugh disagreed, stating that a court is to use all the tools of interpretation at Step 1 and that City of Arlington did not reflect a “low bar.”

Finally, Judge Kavanaugh asked Mr. Rothenberg to respond to Mr. Alban’s point that the IRS does not require tax return preparers to obtain a power of attorney. He replied that the power of attorney is required for “agents,” and tax return preparers are not agents. Mr. Rothenberg then repeated the point made in his opening remarks that the original 1884 statute covered “agents,” but other persons as well. Judge Williams interjected that the government appeared to be placing too much weight on the statutory reference to “other persons,” because canons of statutory construction provide that the scope of broad language like that is limited by the specific terms that precede it — here, “agents” and “attorneys.” Mr. Rothenberg noted that he disagreed, but his time expired before he could elaborate.

The case was heard on an expedited schedule, and therefore it is reasonable to expect that a decision will issue in the next couple of months.

Attached below is the plaintiffs’ response brief and the government’s reply brief, which were not previously posted on the blog. The government’s opening brief and two amicus briefs in support of the government were previously posted here and here.

The government has filed its reply brief in the Supreme Court in Woods. See our reports on the opening briefs here and here. The discussion of the jurisdictional issue focuses less on the textual analysis set forth in the government’s opening brief and more on the policy implications of adopting the taxpayers’ position. The government asserts that the taxpayers’ reading of the statute would effectively “negate Congress’s grant of authority to courts in partnership-level proceedings to determine the applicability of penalties.”

On the merits, the reply brief devotes most of its attention to responding to the taxpayers’ threshold argument that the penalty is inapplicable because there was no valuation misstatement to begin with, which was not the rationale of the court of appeals’ opinion. The government relies heavily on the statutory reference to “adjusted basis,” noting that it is stated in the disjunctive and therefore should be read to apply to basis overstatements that have nothing to do with “fact-based” valuation misstatements. The merits discussion also adverts to policy, stating that there is nothing “objectionable about the fact that basis overstatements arising from sham transactions will nearly always trigger the 40% penalty for gross misstatements.” That is because “the most egregious misconduct–engaging in phony transactions to create an artificial basis–warrants the most severe sanction.”

We also link to an amicus brief inadvertently omitted from our previous report. This brief, filed by Penn Law School Professor David Shakow because the issue is one “in which he has a special interest and about which he has been engaged for some time in writing,” supports the taxpayers’ primary argument on the merits. The brief analyzes the statutory language in context, and examines the history of the statute — both the legislative history and its application before tax shelters became rampant — and concludes that the valuation misstatement penalty should not apply in the absence of an actual valuation misstatement. According to Professor Shakow, the IRS, with the acquiescence of many courts, is improperly “using the valuation misstatement penalty as a surrogate for a ‘tax shelter’ penalty that Congress has not authorized.”

The taxpayers have filed their response brief in the Supreme Court in the Woods case, contending first that the courts lacked jurisdiction to impose the penalties requested by the IRS and, second, that, if jurisdiction exists, the Fifth Circuit correctly held that the valuation misstatement penalty could not be imposed.

On the jurisdictional point, the brief emphasizes the same basic point made by the courts that have questioned jurisdiction in similar partnership cases (see our previous report here) – namely, that the statute allows for partnership-level jurisdiction in a TEFRA proceeding only over a penalty that relates to adjustment of a “partnership item.” It is undisputed that outside basis is not a partnership item, and the taxpayers contend that the “penalty at issue in this case undeniably relates to the adjustment of a nonpartnership item—outside basis—not to a partnership item.” The taxpayers’ brief dismisses the government’s argument on this point as having “an Alice-in-Wonderland feel to it” and, at any rate, as proving too much. The taxpayers concede that the outside basis determination does relate to the adjustment of a partnership item, specifically, whether the partnership transaction should be disregarded for lack of economic substance. But the brief maintains that, if that attenuated connection were enough for jurisdictional purposes, then the statute’s jurisdictional limitation “would be rendered essentially meaningless and could be readily circumvented.” The result would be to “rewrite Section 6226(f) to create precisely the jurisdiction that Congress withheld.”

On the merits of the penalty, the brief begins with a different argument from the one relied upon by the Fifth Circuit – maintaining that “there was no ‘valuation misstatement’ to begin with.” Pointing to the common meaning of the word “valuation” in the statutory text, and to the legislative history, the taxpayers argue that “Congress meant the penalty to address misstatements about valuation—an inherently factual concept concerning the worth or cost of property.” Therefore, the penalty should not be “triggered by transactions that are accurately reported but deemed not to exist based on a legal conclusion that they lack economic substance,” even if the result of that legal conclusion is to restate the basis claimed by the taxpayer.

The government argues, of course, that the text of the penalty provision is not limited strictly to classic “valuation” misstatements, because the statute defines those misstatements as occurring when “the value of any property (or the adjusted basis of any property)” is overstated on the return. The taxpayers argue, however, that the government is overreading the parenthetical “adjusted basis” reference and, read in context, it should apply “only when basis is incorrectly reported due to a factual misrepresentation of a property’s worth or cost.” For the government to read this language as authorizing application of the valuation overstatement penalty to cases where there is a “basis overstatement that is in no way dependent on a valuation error” – that is, one that is traceable to a legal conclusion that the transaction creating the basis was devoid of economic substance – is in the taxpayers’ view “essentially blowing [the penalty provision] up and transforming it into a penalty scarcely recognizable to the one Congress intended.”

The taxpayers also point to the penalty provision added in Congress’s recent enactment of an economic substance provision. They argue that the penalty associated with that provision (see Code section 6662(b)(6) and (i)) could impose a 40% penalty for the reporting in this case and therefore its enactment indicates that the existing valuation misstatement penalty should not be construed to cover economic substance cases.

As a fallback argument, the taxpayers argue for adopting the rationale of the Fifth Circuit – namely, that the underpayment of tax is “attributable to” a finding of no economic substance and hence is not attributable to a basis overstatement. Finally, the taxpayers rely on language from Supreme Court decisions in the 1930s to argue that doubts about the meaning of ambiguous tax statutes should be resolved in favor of the taxpayer.

An amicus brief in support of neither party was filed by Professor Andy Grewal. That brief discusses the state of the law in the courts of appeals regarding the substance of the economic substance doctrine, but urges the Court to “reserve its opinion on the broader economic substance issues implicated in this case.” Four amicus briefs were filed in support of the taxpayers, on either one or both issues, by other taxpayers involved in pending litigation that would potentially be affected by the Court’s holding. See here, here, here, and here.

The government’s reply brief is due August 18. Oral argument has been scheduled for October 9.

The government has filed its opening brief in the Supreme Court in the Woods case, which involves whether the 40% gross valuation overstatement penalty applies in the context of a basis-inflating transaction held not to have economic substance. See our earlier report here.

The government’s arguments on the question whether the penalty can be applied in these circumstances are similar to those discussed here previously and addressed in several court of appeals decisions. It relies on the “plain text” of the statute, arguing that “[t]he word ‘attributable’ means ‘capable of being attributed’” and therefore a finding of lack of economic substance does not defeat the conclusion that the tax underpayment is “attributable” to a basis overstatement. And the brief responds at length to the Fifth Circuit’s reliance on the “Blue Book” to justify a narrower interpretation of the statute. The government characterizes the court’s approach as reflecting “a misinterpretation of the relevant passage” in the Blue Book and goes on to say that, “[i]n any event, the Blue Book, a post-enactment legislative report, could not trump the plain text of Section 6662.” Finally, the government asserts that a contrary rule “would frustrate the penalty’s purpose of deterring large basis overstatements.”

The brief also addresses a question not presented in the petition for certiorari, but instead added to the case by the Supreme Court – namely, whether the district court had jurisdiction under Code section 6226 to decide the penalty issue. This issue concerns the two-level structure established by TEFRA for judicial proceedings involving partnerships. Partnerships are not taxable entities themselves; tax attributes from the partnership flow through to the tax returns of the individual partners. Accordingly, before 1982, tax issues raised by a partnership tax return could be resolved only through litigation with individual partners, leading to duplicative proceedings and often inconsistent results. The TEFRA scheme calls for proceedings at the partnership level to address “the treatment of any partnership item,” which would be issues common to all the individual partners. Adjustments that result from those proceedings flow down to the individual partners, and the IRS can make assessments on the individual partners based on those partnership-level determinations without having to issue a notice of deficiency or otherwise initiate a new proceeding. Issues that depend on the particular circumstances of individual partners, however, are determined in separate partner-level proceedings.

In this case, the penalty determination was made at the partnership level. That seems logical in one sense because the conclusion that the transaction lacked economic substance – and therefore did not have the effect on basis claimed by the taxpayer – was a partnership-level determination that would not depend on an individual partner’s circumstances. The Tax Court agrees with that approach, but the D.C. Circuit and the Federal Circuit have stated that such determinations do not involve “partnership items” within the meaning of TEFRA and hence a penalty determination like the one in this case should be made at the individual partner level. See Jade Trading, LLC v. United States, 598 F.3d 1372 (Fed. Cir. 2010); Petaluma FX Partners, LLC v. Commissioner, 591 F.2d 649 (D.C. Cir. 2010). The reason is that the basis at issue here is an “outside basis,” that is, the partner’s basis in his or her partnership interest. A partner’s outside basis is not a tax attribute of the partnership entity (unlike, for example, the basis of an asset held by the partnership). These courts did not dispute the assertion that outside basis is an “affected item” (that is, an item affected by a partnership item) and that the conclusion underlying the penalties obviously follows from the partnership item determination; it is obvious that there is zero outside basis in a partnership that must be disregarded on economic substance grounds. But these courts ruled that obviousness is not a good enough reason to get around the jurisdictional limitations of the statutory text; “affected items” must be determined in a partner-level proceeding.

In its brief in Woods, the government argues that the statutory text allows the penalty determination to be made at the partnership level because the text affords jurisdiction over a penalty that “relates to an adjustment to a partnership item.” I.R.C. § 6226(f) (emphasis added). According to the government, “[w]hen a partnership item is adjusted in a way that requires an adjustment to an affected item and triggers a penalty, the penalty ‘relates to’ the adjustment to the partnership item.” The statute thus should be understood as providing that “the court [considering the partnership-level issues] should decide whether an error with respect to a partnership item, if reflected in a partner’s own return, could trigger the penalty.” The government’s brief then argues forcefully that its interpretation “best effectuates the objectives” of TEFRA because requiring this kind of penalty determination – involving “a pure question of law whose resolution does not depend on factors specific to any individual partner” – to be made at the partner level “would restore the inefficient scheme that Congress intended to do away with.”

[Note: Miller & Chevalier member and former Commissioner of Internal Revenue Lawrence B. Gibbs is among the five former Commissioners who filed an amicus brief in support of the Government in the Loving appeal.]

Five former IRS Commissioners filed an amicus brief in support of the Government’s appeal of the district court decision invalidating the IRS’s registration regime for paid tax return preparers. The former Commissioners “take no position regarding whether the manner in which the Treasury has chosen to regulate tax return preparers is advisable, but they strongly disagree with the District Court’s view that Congress has not empowered Treasury to do so.” Under 31 U.S.C. § 330, the Treasury Department is authorized to “regulate the practice of representatives of persons before the Department of Treasury.” The district court held that, although the statute did not define “the practice of representatives,” the surrounding statutory text made clear that Congress used “practice” to refer to “advising and assisting persons in presenting their case,” not simply preparing returns. In their amicus brief, the former Commissioners argue that filing a tax return does, in fact, constitute presenting a case. The amicus brief explains that an increasingly wide variety of government assistance programs are administered through the federal income tax system, including a number of refundable tax credits (the earned income credit, health insurance cost credit, etc.). Accordingly, the tax return preparer is not simply calculating tax liability; he or she also is often representing the taxpayer in pursuing claims for federal assistance. Because disbursements of benefits under these government assistance programs is administered largely through self-reporting on a tax return, it is essential, the former Commissioners argue, that paid tax return preparers be regulated so that taxpayers can identify the credits and benefits to which they are entitled and so that both the government and taxpayers are protected against fraud.

The National Consumer Law Center and National Community Tax Coalition also filed a joint amicus brief arguing for reversal of the district court’s decision. That brief documents “rampant” fraud and incompetence in the paid preparation industry, especially on the part of fringe return preparers, such as payday loan stores.

Yesterday, in Loving v. IRS (the subject of a recent post), the Government filed its reply brief in support of its motion to stay the district court’s injunction of the new registration regime for paid tax-return preparers. With respect to its likelihood of success on the merits, the Government argued the ambiguity of the statute authorizing Treasury to “regulate the practice of representatives of persons before” it. With respect to the threat of irreparable harm, the Government argued that the injunction risked delaying the implementation of the regulatory regime until the 2015 return-preparation season and that the problem of unregulated return preparers represents a “major public concern.”

The Government has appealed to the D.C. Circuit from the district court decision enjoining the IRS from enforcing its new registration regime for paid tax return preparers. Loving v. IRS, D.C. Cir. No. 13-5061. The Government has also asked the court of appeals to stay the decision pending appeal, after the district court declined to grant a stay. The Government’s stay motion recites that, the appeal has not yet been authorized by the Solicitor General’s office, but that, if the appeal is authorized, the Government intends to file its opening brief in March and to move for an expedited oral argument.

To recap the district court’s decision: In 2011, the Treasury Department promulgated regulations that extended Circular 230 (the regulations that govern practice before the IRS) to non-attorney, non-CPA tax-return preparers who prepare and file tax returns for compensation. Under the new regulations, tax-return preparers must register before they can practice before the IRS, and they are deemed to practice before the IRS even if their only function is to prepare and submit tax returns. In order to register initially, tax return preparers must pass a qualification exam and pay a fee. To maintain their registration each year, they must pay a fee and take at least fifteen hours of continuing education courses. The IRS estimated that the new regulation sweeps in 600,000 to 700,000 new tax return preparers who were previously unregulated at the federal level.

Three tax return preparers who were not previously regulated by Circular 230 brought suit challenging the 2011 regulations and seeking declaratory and injunctive relief. In January 2013, the U.S. District Court for the District of Columbia (Boasberg, J.) granted the plaintiffs’ motion for summary judgment. The court recognized that, under Mayo Foundation, the two-step analysis of Chevron should be applied to determine the validity of the regulations. The court explained, however, that “the battle here will be fought and won on Chevron step one” because “Plaintiffs offer no independent argument for why, if the statute is ambiguous, the IRS’s interpretation would be ‘arbitrary or capricious . . .’ under Chevron step two.” Focusing in this way on the unambiguous statutory text, the court held that the Treasury Department lacked statutory authority to issue the regulations.

The court rejected the Government’s argument that the agency had inherent authority to regulate those who practice before it, because a statute (31 U.S.C. § 330) specifically defined the scope of the Treasury Department’s authority. Under that statute, the Treasury Department is authorized to “regulate the practice of representatives of persons before the Department of Treasury.” The district court held that, although the statute did not define “the practice of representatives,” the surrounding statutory text made clear that Congress used “practice” to refer to “advising and assisting persons in presenting their case,” not simply preparing returns. Turning to provisions in the Internal Revenue Code that regulate tax return preparers, the court reasoned that Congress could not have intended § 330 to be the authority for regulating tax return preparers because “statutes scattered across Title 26 of the U.S. Code create a careful, regimented schedule of penalties for misdeeds by tax-return preparers.” The court rejected the Government’s resort to policy arguments. “In the land of statutory interpretation, statutory text is king.” Holding that the new regulations were ultra vires, the court enjoined the IRS from enforcing the registration regime.

In the motion for a stay pending appeal filed with the district court, the Government argued that the injunction substantially disrupted the IRS’s tax administration and that shutting down the program would be costly and complex. The district court was not persuaded, concluding that “[t]hese harms, to the extent they exist are hardly irreparable, and some cannot even be traced to the injunction.”

The Government’s stay motion in the court of appeals, filed February 25, argues that “[f]ailure to grant the stay will work a substantial and irreparable harm to the Government and the taxpaying public, crippling the Government’s efforts to ensure that individuals who prepare tax returns for others are both competent and ethical.” According to the Government’s brief, the “IRS estimates that fraud, abuse, and errors cost the taxpaying public billions of dollars annually.” In their March 8 response, the Plaintiffs/Appellees argue that the Government failed to establish any imminent irreparable harm traceable to the injunction, noting that even the Government acknowledged that most of the alleged harms would not occur until 2014. The tax return preparers also emphasize that the injunction merely preserves the historical status quo.

The taxpayers in Bergmann v. Commissioner are appealing an adverse Tax Court decision, 137 T.C. No. 10, holding that they failed to timely file a qualified amended return for 2001 and thus are liable for the 20-percent accuracy related penalty. The taxpayers participated in a listed transaction promoted by KPMG, known as the Short Option Strategy. In 2004, two years after the IRS issued a summons to KPMG specifically identifying the Short Option Strategy transaction, the Bergmanns filed an amended return disclaiming the tax benefits of the transaction. The case concerns the interpretation of Treas. Reg. § 1.6664-2(c)(3)(ii) (2004), which establishes rules on the timing of filing a qualified amended return for undisclosed listed transactions. If an amended return is filed before certain terminating events, additional tax reported on the amended return will be treated as if it were reported on the original return. Under the “promoter provision,” the amended return must be filed before the IRS first contacts a person concerning liability under section 6700 (a promoter investigation). The Tax Court rejected the taxpayers’ argument that the IRS must establish that the target of the promoter investigation is in fact liable for a promoter penalty. The Tax Court also held that, in investigating the promoter, the IRS need only identify the “type” of transaction in which the taxpayer engaged, not the specific transaction or the identity of the taxpayer.

In 2000-2001, taxpayer Jeffrey Bergmann was a tax partner in KPMG’s Stratecon Group, which the Tax Court characterizes as “focused on designing, promoting and implementing aggressive tax planning strategies for high-net-worth individuals.” In tax years 2000 and 2001, Bergmann entered into a “Short Option Strategy” transaction promoted by fellow KPMG partner Jeffrey Greenberg. This transaction was identified by the IRS as an abusive tax shelter in Notice 2000-44, 2000-2 C.B. 255 (transactions generating losses by artificially inflating basis). The taxpayers (Bergmann and his wife) claimed losses for the 2000 and 2001 Short Option Strategy transactions on their 2001 return, but filed an amended return in March 2004 removing the losses attributable to the transactions and paying approximately $200,000 in additional tax. The IRS treated the qualified amended return as untimely and assessed accuracy-related penalties.

Under Treas. Reg. § 1.6664-2(c)(3)(ii), as in effect when the Bermanns filed their amended return, the time to file a qualified amended return terminates when the IRS first contacts a person “concerning” liability under section 6700 (a promoter investigation) for an “activity” with respect to which the taxpayer claimed a tax benefit. The IRS served KPMG with two summonses in March 2002, one of which was specifically targeted at KPMG’s involvement in promoting transactions covered by Notice 2000-44. Attempting to disassociate their transaction from those that were the subject of the KPMG investigation, the taxpayers argued that Greenberg acted in his individual capacity in advising them, not as an agent of KPMG. The Tax Court rejected this argument, concluding that the transactions in which the taxpayers engaged were within the scope of Greenberg’s responsibilities as a KPMG partner and also concluding that KPMG had not limited Greenberg’s authority to engage in Notice 2000-44 transactions with other KPMG partners, including Bergmann. The Tax Court also rejected the taxpayers’ argument that the promoter investigation must specifically identify the “activity” that gave rise to the tax benefit. The Tax Court held that the summons need only refer to the “type” of transaction in which the taxpayer participated. The court found that the March 2002 summons met this requirement because it specifically identified the transaction as the same or substantially similar to the transaction identified in Notice 2000-44.

The Tax Court noted that disclosure of the transaction after the Notice 2000-44 summons was served on KPMG would not have been voluntary. The Tax Court explained that the purpose of the promoter provision is to encourage taxpayers to voluntarily disclose abusive tax shelters. That purpose is effectuated by terminating the period to file a qualified amended return when disclosure would no longer be voluntary.

The Tax Court addressed a second issue as well. At first glance, the taxpayers appeared to be subject to the 40% gross overvaluation penalty because the scheme depended on what was found to be an artificially inflated based. They argued, however, that the tax underpayment was not “attributable to” the overvaluation because the Commissioner contended (and the taxpayers eventually conceded) that the entire transaction should be disallowed for lack of economic substance, thereby making the valuation irrelevant. The Tax Court noted that this type of bootstrapping argument has been rejected by several circuits, which have held that the 40% penalty applies when overvaluation is intertwined with a tax avoidance scheme, but that Ninth Circuit precedent has accepted the argument. Keller v. Commissioner, 556 F.3d 1056. Accordingly, the Tax Court rejected the IRS’s attempt to impose a 40% penalty, and the taxpayers were assessed only the standard 20% accuracy-related penalty. The IRS has not appealed this issue.

The taxpayers’ opening brief is due on May 16. The case is docketed in the Ninth Circuit as No. 12-70259.

As we previously reported, Day 1 of last week’s oral argument in the Supreme Court on the challenges to the health care legislation focused on whether the Anti-Injunction Act bars the lawsuits. The excitement about the argument on that issue was largely gone as soon as it was over, because it was fairly apparent that the Court will not find the Act to be an obstacle to reaching the merits of the health care dispute. Indeed, Robert Long, the lawyer who argued as amicus for that position, has predicted that he will not get a single vote. Certainly the argument was almost completely forgotten by the next day when the Court’s questioning on the constitutionality of the individual mandate led many observers to conclude that the mandate will be invalidated. (For the record, my opinion is that the health care legislation will survive, but that topic is beyond the scope of this blog.) Still, the Court’s decision to reject the applicability of the Anti-Injunction Act could have precedential significance, depending on the rationale that the Justices use. Therefore, we briefly recount the argument here with that issue in mind.

There were two basic arguments made for holding that the health care lawsuits could proceed despite the Anti-Injunction Act. The primary argument was that the Act by its terms did not apply — that is, that for a variety of reasons the “penalty” for failing to obtain health insurance is not a “tax” within the meaning of the Anti-Injunction Act. Both the challengers to the health care legislation and the United States took this position. Preliminary to this statutory interpretation question, however, was the argument that the Anti-Injunction Act should not apply in this case — even if the health care penalty would ordinarily come within the ambit of the Anti-Injunction Act — because the government had waived the defense and urged that the lawsuits should proceed. The validity of that waiver argument turns on whether the Anti-Injunction Act is “jurisdictional,” meaning that it addresses a court’s jurisdiction or power to hear a case, as opposed to being a “claim processing rule.”

A court does not have the authority to create its own jurisdiction, even if both parties want it to hear the case. Thus, if a statute is “jurisdictional,” a court is obliged to examine jurisdiction on its own and to dismiss the case if it finds that the statutory conditions are not met. Conversely, if a statutory condition is not jurisdictional, then a party can waive satisfaction of that condition and the court can proceed to hear the case. (For example, many exhaustion requirements or statutes of limitations are not jurisdictional, see Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010); Day v. McDonough, 547 U.S. 198, 205-06 (2006)). In the health care litigation, although the United States wanted the lawsuits to proceed, it took the position that the Anti-Injunction Act is “jurisdictional” and therefore (in contrast to the challengers to the law) argued that the Court could proceed to hear the case only if it concluded that the Anti-Injunction Act by its terms did not apply to the “penalty” for failing to obtain insurance.

If the Court were to resolve the case on waiver grounds, concluding that the Anti-Injunction Act is not jurisdictional, that could create opportunities for taxpayers in future cases if a government attorney overlooks an Anti-Injunction Act defense. It also would give the government flexibility to assert the defense when it wants, but to allow cases like the health care challenge to go forward if the government determines that it wants a prompt answer. The government, however, is concerned about a holding that the Anti-Injunction Act is not jurisdictional, because courts are freer to adopt equitable exceptions to non-jurisdictional statutes.

At the oral argument, the Justices explored both possible grounds for resolving the issue. Chief Justice Roberts and Justice Alito seemed the most interested in concluding that the Act is not jurisdictional and thus giving effect to the government’s waiver. Roberts described as the “biggest hurdle” to the Anti-Injunction Act argument a 1938 case in which the Court had gone ahead and decided an issue apparently barred by the Act after the government had waived its defense. When counsel responded that the case was no longer good law and pointed out that the Court had since repeatedly referred to the Act as “jurisdictional,” Alito forced him to concede that the Court had never actually held that the statute was “jurisdictional” in a case where that characterization would make a difference. Justices Ginsburg, Kagan, and Sotomayor all joined in that line of questioning, pointing to similarly worded statutes or precedents that in Justice Sotomayor’s words indicated that “Congress has accepted that in the extraordinary case we will hear the case.”

As the argument progressed, however, it appeared less likely that a majority would coalesce around this position. Justice Breyer volunteered that he was inclined to agree that the Anti-Injunction Act is jurisdictional, but that he doubted it applied to the health care legislation. Sotomayor indicated that she thought this position, which is what was being espoused by the government, was the least problematic. Justice Ginsburg suggested that she sided with the position that the Act did not apply, observing that this conclusion would make it unnecessary to resolve the thornier “jurisdictional” question.

Although it is always hazardous to predict outcomes based on questions asked at oral argument, the most likely outcome appears to be that the majority of Justices will address the merits of the Anti-Injunction Act issue, rather than relying on the government’s waiver of the defense. If so, the decision will not foreclose courts in the future from applying the Anti-Injunction Act when the government has failed to raise the defense or deliberately chosen not to raise it.

A decision is expected in the last week of June, perhaps June 28, and will surely be overshadowed by the Court’s contemporaneous decision on the constitutionality of the health care legislation.

The Supreme Court is preparing to hold oral arguments on its long-awaited consideration of the constitutionality of the health care legislation. The arguments will cover four distinct issues in three different cases and occur over three days, March 26-28. The most prominent issue, of course, is whether the “individual mandate” requiring almost everyone to have health insurance is constitutional. Additional issues are “severability” (whether the entire law must be struck down if the individual mandate provision is unconstitutional or whether other portions of the law can survive) and whether the Medicaid expansion provisions of the law are impermissibly “coercive.”

But leading all of this off on March 26 in HHS v. Florida, No. 11-398, is a tax issue – whether the challenges to the law are barred by Code section 7421, the Tax Anti-Injunction Act. Former Solicitor General Paul Clement is slated to argue the other three issues for the challengers to the law, but has left the tax issue for someone else. He remarked (tongue-in-cheek, I believe) that the Court was playing a “practical joke” on the public in its scheduling and that the folks who wait in line all night to attend the first day of arguments on March 26 are going to end up sitting through “the most boring jurisdictional stuff one can imagine.” Tax lawyers might disagree (or they might not). Either way, the section 7421 issue could hijack the case and have the effect of prolonging the uncertainty over the constitutionality of the law for several more years.

The issue is simple on its face. Section 7421 forbids federal courts from maintaining any suit “for the purpose of restraining the assessment or collection of any tax.” Rather, one generally must wait until the tax is imposed and then contest the liability through a refund claim or in defending against an enforcement proceeding. The individual mandate in the statute is enforced by imposing a “penalty” on individuals who are required to purchase insurance but fail to do so. The relevant provision is section 5000A of the Internal Revenue Code, which requires individuals to report on their tax return information about their compliance with the mandate and pay a penalty if necessary. That Code section also generally provides that the amounts owed are to be assessed and collected in the same manner as other penalties under the Code.

If the health insurance penalty is a “tax” subject to section 7421, then the current challenges to the mandate (which in essence are challenging the imposition of a penalty for failure to purchase insurance) are premature. Rather, the legality of the penalty would have to be contested after it is imposed, like other taxes. The individual mandate does not kick in until 2014, so an income tax return that self-reports penalty liability, thereby potentially triggering an assessment, would not be filed until 2015. The Fourth Circuit adopted this view and dismissed a suit challenging the health care statute, telling the plaintiffs to come back in a few years. Other circuits have disagreed, finding that, despite its presence in the Code and linkage to the assessment procedures for more conventional tax penalties (which are generally treated as “taxes”), the health care penalty has nothing to do with income tax and ought not to be governed by section 7421. Of course, the issue is not that simple. A concise and more nuanced summary of the respective arguments can be found in this article (see page eight) by our colleague George Hani.

One interesting sidelight to the Court’s consideration of this issue is that the Court had to appoint counsel to argue that section 7421 bars the suit. The challengers, of course, have argued all along that section 7421 is no bar. The government initially raised section 7421 as a defense, but later reversed course and abandoned that position because it did not want uncertainty over the legislation’s legality to linger. Thus, in the Supreme Court, both sides are arguing that section 7421 does not bar the lawsuit. The Court appointed Robert Long, an experienced Supreme Court practitioner, as an amicus curiae to brief and argue the position that section 7421 does bar the suit.

The oral argument on the morning of March 26 will proceed as follows: Robert Long, arguing as amicus for 40 minutes that the challenges are barred; Solicitor General Donald Verrilli, arguing for the government for 30 minutes that section 7421 does not bar the challenges, and Gregory Katsas, arguing for the challengers for 20 minutes also that section 7421 does not bar the challenges.

The Court has announced that a transcript and audio of the argument will be posted on its website by 2:00 that afternoon. We will be back sometime after that with some observations on the argument.

The Supreme Court briefs filed on this issue can be found here. The Court is likely to issue its decision during the last week of June.

As we have previously reported, the Third Circuit is considering a tricky issue relating to the Tax Court’s jurisdiction to resolve disputes concerning overpayment interest. At the oral argument, the court explored different facets of the issue, even while joking about its complexity. At one point, one of the judges appeared to question whether the Tax Court’s Estate of Baumgardner case was correctly decided, even though the IRS had acqueisced in it. Government counsel declined that offer, instead adhering to the view that Baumgardner is different because it involved deficiency interest rather than overpayment interest. Taxpayer’s counsel invoked Code section 7481(c) as a possible alternative jurisdictional basis for the Tax Court, but the government responded that section 7481(c) could not apply to Sunoco’s situation. In response to a question, government counsel acknowledged that the dispute in Sunoco would not affect many taxpayers, as they usually bring overpayment interest claims to the Court of Federal Claims.

Although no precise consensus emerged from the court’s questions and answers, the panel seemed to exhibit sufficient skepticism about the Tax Court’s reasoning that practitioners should be cautious in placing much weight on the Tax Court’s decision. There is certainly a substantial risk that it will be reversed.

The Third Circuit has revised its January oral argument calendar and rescheduled the oral argument in Sunoco for the morning of Tuesday, January 25. The case had been scheduled for argument on the previous day. The panel that will hear the case is Chief Judge Theodore McKee, Judge D. Brooks Smith, and Judge Richard Stearns, a district judge from the District of Massachusetts who is sitting by designation.

The last post in this series discussed differences in procedural posture that cause differences in the application of penalties. Court splits in how the various and sundry penalty provisions in the Code are applied is an even more confusing area. The two principal confusions are in the areas of TEFRA and valuation misstatements. We will deal with TEFRA in this post.

Partnerships are not taxpaying entities. They flow income, losses, deductions, and credits through to their partners who pay the tax. Nevertheless, since Congress enacted the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. No. 97-248, 96 Stat. 324, 648-71 (TEFRA), some partnerships have been subject to audit (and litigation of those audit adjustments in court) directly at the partnership level. Because individual partners still have tax issues that are not related to the partnership, tax items have to be divided between those that are handled in the partnership proceeding (so-called “partnership items”) and those that are handled at the level of the partners (so-called “non-partnership items”). (There is a third category of items that are affected by partnership items, appropriately named “affected items,” which we don’t need to address for purposes of this discussion.) As one can imagine, dividing the partnership tax world up into these two sorts of items is not always the easiest thing to do where you have items that are factually affected both by actions taken by the partnership and by actions taken by the partners.

In an apparent attempt to clarify this treatment in a small way, in 1997 Congress decreed that penalties that relate to partnership items are determined at the partnership level (i.e., the penalties themselves are partnership items). Seesection 6221. The difficulty implementing this provision is that, although partnerships are subject to audit, they are often owned and run by people and those people are often the partners. When one takes this fact into account in the context of the various penalty defense provisions, such as section 6664, which protects against penalties if a taxpayer has “reasonable cause and good faith,” you have a dilemma. Namely, if penalties are determined at the partnership (and not partner) level, whose conduct can you look at to determine if the partnership (and not the partners) had reasonable cause and good faith?

Regulations require that if an individual partner invokes section 6664 as a personal defense, that invocation has to be done in a partner level proceeding (generally, a refund action after the TEFRA proceeding is completed). Treas. Reg. § 301.6221-1(d). The IRS position as to how this applies in practice appears to be that the only conduct that is relevant for purposes of applying section 6664 in a TEFRA proceeding is what the partnership did through its own non-partner employees or, perhaps (it is unclear), the “tax matters partner” who manages the tax affairs of the partnership. From the IRS perspective, if a partner asserts conduct for purposes of section 6664, that assertion has to be parsed to see if the partner intended his or her conduct to be attributed to the partnership or, rather, asserted it on their own behalf. See Pet. for Rehearing at 8-10, Klamath Strategic Investment Fund v. United States, 568 F.3d 537 (5th Cir. 2009) (Docket No. 07-40861) (the petition was denied, it is included here to show the IRS position). Exactly how one is to conduct this hair-splitting (some might say hare-brained) analysis is hard to fathom. The best evidence of whether a partner’s conduct was on his or her behalf, or the partnership’s, will be the partner’s own statement. Presumably, any well-advised partner will say that he or she intended the conduct on behalf of the partnership if the desire is to raise the defense on behalf of the partnership, and only badly advised partners won’t. Surely, this is not a sustainable test.

Courts are split. The Fifth Circuit in Klamath rejected the IRS theory and looked to the actions of partners to impute reasonable cause and good faith to the partnership. 568 F.3d at 548. The Court of Federal Claims had at least two competing views. Stobie Creek Investments, LLC v. United States, 82 Fed. Cl. 636, 703 (2008) generally went the same way as Klamath, looking to the managing partners’ actions. But in what has to be the most thorough analysis of the issue, Judge Allegra in Clearmeadow Invs., LLC v. United States, 87 Fed. Cl. 509, 520 (2009) ruled for the Government giving deference to: (i) the regulatory edict that actions of the partners are only to be considered in the later refund proceeding and not in the TEFRA proceeding; and (ii) the language of section 6664 and regulations thereunder, which focuses on “taxpayers” and distinguishes partnerships from taxpayers. Based on the docket, Clearmeadow is not being appealed.

Regardless of your persuasion, at least Clearmeadow seemed to have debunked the idea that it could somehow matter (and, even more strangely, somehow be determined by the judge) whether the partner intended the conduct on his or her own behalf or on behalf of the partnership. Id. at 521. Relying on the discretion of a litigant to determine jurisdiction does seem off-base. Yet that is exactly what the Federal Circuit did on appeal in Stobie Creek, affirming on the basis that the Court had jurisdiction because the partnership “claim[ed] it had reasonable cause based on the actions of its managing partner.” Stobie Creek Invs. LLC v. United States, 608 F.3d 1366, 1381 (Fed. Cir. 2010). Given that the Court went on to find that there was no reasonable cause, a cynic might say that the Court was anxious to give itself jurisdiction so it could reject the penalty defense definitively and prevent the taxpayer from taking another bite at the apple in a later refund proceeding, perhaps in district court. In any event, Stobie Creek has reignited the debate about whether a self-serving statement about intent controls jurisdiction and doesn’t seem to resolve the questions of: (i) when a partner is acting on his or her own behalf versus the partnership’s or (ii) whether the rules apply differently to managing versus non-managing partners. The state of the law in this area of penalty application is indeed still schizophrenic.

The next post in the penalties series will skip past valuation allowances (where there is also a circuit split we will come back to) and deal with reasonable reliance on tax advisers (for which we will surely get some hate mail).

Based our recent post on the Sala decision here, we have had several comments inquiring about the varied application of penalties in the “tax shelter” cases. This is the first in a planned series of responses to those comments that will try to explain, iron out, or at least flag, some of the irregularities.

When looking at the application of penalties to “shelter” cases generally, procedural posture matters. A good example of this is Sala. Why did the 10th Circuit discussion in Sala omit penalties? Because it was a refund case in which the taxpayer appears to have filed a qualified amended return (“QAR”) prior to being “caught” by the IRS. See generally 26 C.F.R. § 1.6664-2(c)(2). There is a discussion of whether Sala’s amended return was qualified in the district court opinion and that ruling apparently was not a subject of the appeal. Sala v. United States, 552 F. Supp. 2d 1167, 1204 (D. Colo. 2008). Thus, in a refund suit posture, there may be procedural reasons why penalties are inapplicable.

The refund claim situation is contrasted for penalty purposes with either deficiency proceedings or TEFRA proceedings. In either of the latter, penalties cannot be abated by a QAR (at least as to the matter at issue) because the taxpayer must have a deficiency or adjustment (to income) in order to bring either action. See generally sections 6212 and 6225-6. Thus, in cases such as Gouveia v. Commissioner, T.C. Memo 2004-25 (2004), the Tax Court addressed (and imposed) penalties in a deficiency context. And, in Castle Harbor, the courts addressed (but did not impose) penalties in the context of a TEFRA proceeding. TIFD III-E Inc. v. United States, 2009 U.S. Dist. LEXIS 93853 (D. Conn 2009). (We previously discussed the pending appeal in Castle Harbourhere.)

While there is nothing mysterious about the foregoing, the different routes tax cases take can often cause an illusion that there is inconsistency in the application of penalties when, in fact, the cases are just procedurally different. One other area in which this confusion is particularly common (and an area in which there is a bit of a dispute as to the correct application of the law) concerns whose behavior “counts” for purposes of the sections 6662 (reasonable basis) and 6664 (reasonable cause and good faith) defenses in the context of a TEFRA proceeding. We will address that issue in our next post on penalties.

On March 5, 2010, the government filed its reply brief in its appeal from the Tax Court’s decision in Sunoco Inc. v. Commissioner, 122 T.C. 88 (2004), thus completing the appellate briefing. The case raises a novel issue concerning the Tax Court’s jurisdiction to determine overpayment interest. Sunoco filed a petition seeking redetermination of deficiencies for its 1979, 1981, and 1983 tax years. In an amended petition, Sunoco reported that certain issues had settled but argued that the IRS had committed errors in calculating the interest on underpayments and overpayments arising out of those issues because it used incorrect starting and ending dates. The IRS moved to dismiss Sunoco’s claims for additional overpayment interest on the ground that Code section 6512 does not give the Tax Court jurisdiction to make a determination of overpayment interest with respect to overpayments not at issue in the case. The Tax Court denied the motion, holding that it had jurisdiction over Sunoco’s claims because the court would be resolving the same issues regarding starting and ending dates in connection with disputes over underpayment interest that were unquestionably before the court.

The Tax Court’s decision is a narrow one, finding that the settled principles of Estate of Baumgardner v. Commissioner, 85 T.C. 445 (1995), apply in Sunoco’s unusual circumstances because the date issues necessarily affect both underpayment interest and overpayment interest. The government, however, objects that Baumgardner is limited to underpayment interest and that Sunoco opens a Pandora’s box with broad implications by holding that section 6512 can give the Tax Court jurisdiction to resolve a dispute over overpayment interest. In the government’s view, there are no circumstances in which the overpayment jurisdiction of section 6512 can cover a claim for overpayment interest.

Because the appeal of Sunoco was delayed for years while a motion for reconsideration was pending, actual events cast some doubt on the government’s claim of broad implications. The case was decided in 2004 and in the past six years, the Tax Court has had little occasion even to cite it, much less to use it to open the gates to all sorts of taxpayer claims for overpayment interest. Nonetheless, the case has finally reached the Third Circuit, and that court will now decide whether the Tax Court overstepped its bounds in applying the principles of Baumgardner to overpayment interest in this context.

About Miller & Chevalier’s Tax Appellate Blog

Miller & Chevalier was founded in 1920 as the first federal tax practice in the United States. For nearly 95 years, the firm has successfully represented the most sophisticated corporate clients in all facets of federal income taxation. Miller & Chevalier’s Tax department serves clients headquartered throughout the U.S. and around the world and, over the past several years, has represented approximately 30 percent of the Fortune 100 and more than 20 percent of the Global 100. Our clients come to us to solve the thorniest of tax issues, and we have litigated many of the most significant tax cases on record.

The Tax Appellate Blog is intended to be a resource for information on important tax cases under consideration in the appellate courts. It will feature insightful commentary on the issues and provide a dedicated site for following the progress of these cases.

Authors

Steve Dixon is a Member in the Tax Department at Miller & Chevalier. He specializes in controversy and litigation, representing taxpayers in the Tax Court and Federal courts.

Laura Ferguson is a Member of the Supreme Court and Appellate Litigation Group at Miller & Chevalier and has successfully briefed and argued six cases at the U.S. Courts of Appeals in the past two years. Ms. Ferguson also has extensive experience litigating complex, high-stakes tax cases at the Tax Court and federal district courts.

Alan Horowitz is the former Tax Assistant to the Solicitor General at the Department of Justice, where he briefed and argued numerous tax cases in the Supreme Court. He is currently the head of the Supreme Court and Appellate Litigation Group at Miller & Chevalier.